Citation Nr: 9908202
Decision Date: 03/25/99 Archive Date: 03/31/99
DOCKET NO. 95-05 329 ) DATE
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On appeal from the
Department of Veterans Affairs Regional Office in Montgomery,
Alabama
THE ISSUE
Entitlement to a compensable evaluation for malaria.
REPRESENTATION
Appellant represented by: The American Legion
ATTORNEY FOR THE BOARD
S. D. Regan, Counsel
INTRODUCTION
The veteran had active service from November 1948 to May
1952. This matter came before the Board of Veterans' Appeals
(hereinafter "the Board") on appeal from a June 1994 rating
decision of the Montgomery, Alabama Regional Office
(hereinafter "the RO") which continued a noncompensable
disability evaluation for the veteran's service-connected
malaria. In August 1996, the Board remanded this appeal to
the RO to afford the veteran a Department of Veterans Affairs
(hereinafter "VA") examination. In April 1998, the Board
again remanded this appeal to the RO to obtain private and/or
VA treatment records and to afford the veteran an additional
VA examination. The veteran is presently represented in this
appeal by the American Legion.
As noted pursuant to the Board's August 1996 and April 1998
remands, the veteran has advanced contentions on appeal which
the Board has construed as a claim for entitlement to service
connection for a cardiovascular disorder secondary to
malaria. As this issue has neither been developed nor
certified for review on appeal, it is referred to the RO,
again, for appropriate action.
FINDINGS OF FACT
1. All relevant evidence necessary for an equitable
disposition of the veteran's appeal has been obtained by the
RO.
2. The veteran's malaria has not been shown to be recently
active with one relapse in the past year or to be productive
of an old case of malaria with moderate disability.
3. The veteran's malaria, alternatively considered, has not
been shown to be productive of an active disease and no
documentation of active infection as a sequela of the malaria
has been shown.
CONCLUSION OF LAW
The schedular criteria for a compensable evaluation for
malaria have not been met. 38 U.S.C.A. §§ 1155, 5107 (West
1991 & Supp. 1998); 38 C.F.R. Part 4, including §§ 4.3, 4.7,
4.31 and Diagnostic Code 6304 (1998).
REASONS AND BASES FOR FINDINGS AND CONCLUSION
Initially, it is necessary to determine if the veteran has
submitted a well-grounded claim within the meaning of 38
U.S.C.A. § 5107(a) (West 1991 & Supp. 1995), and if so,
whether the Department of Veterans Affairs (hereinafter
"VA") has properly assisted him in the development of his
claim. A "well-grounded" claim is one which is not
implausible. A review of the record indicates that the
veteran's claim is plausible and that all relevant facts have
been properly developed. The Board notes that the accredited
representative has requested that this case be remanded in
order to afford the veteran an additional VA examination.
The accredited representative avers that the September 1998
VA infectious, immune and nutritional disabilities
examination did not comply with the Board's April 1998 remand
instructions, as no blood smears were taken and the criteria
indicated in diagnostic code 6304, were not specifically
discussed. However, the Board notes that the September 1998
VA infectious, immune and nutritional disabilities
examination report did note that the veteran denied any
recurrent fevers or anemia associated with infectious
etiology. Additionally, the examiner specifically indicated
that there had been no documentation of active infection
currently as a sequela of malaria or other viral or other
syndrome. The Board observes that this matter has already
been remanded on two occasions and that another remand at
this time, to schedule an additional VA examination, would
cause needless delay in reaching a decision in this case.
Therefore, the Board is satisfied that the total clinical and
other documentary evidence available is sufficient to
equitably determine the issue presently on appeal.
Accordingly, an additional remand, in order to allow for
further development of the record is not appropriate.
I. Historical Review
The veteran's service medical records indicate that he was
treated for malaria. A November 1951 treatment entry
reported that the veteran was treated for such disorder from
July 13, 1951 to July 30, 1951. The May 1952 separation
examination report did not refer to malaria.
In August 1955, service connection was granted for malaria.
A noncompensable disability evaluation was assigned which has
remained in effect.
II Increased Evaluation
Disability evaluations are determined by comparing the
veteran's present symptomatology with the criteria set forth
in the Schedule for Rating Disabilities. 38 U.S.C.A. § 1155
(West 1991 & Supp. 1998); 38 C.F.R. Part 4 (1998). The Board
notes that the regulations governing the evaluations of
infectious diseases, immune disorders and nutritional
deficiencies were amended as of August 30, 1996. See 61
FEDERAL REGISTER 39,873 (1996) (to be codified at 38 C.F.R.
§§ 4.88b). The Board observes that the regulations
applicable prior to August 30, 1996, are more favorable to
the pending claim for an increased rating. Therefore, the
Board concludes that the veteran's claim will be evaluated
under the former regulations governing malaria. See Karnas
v. Derwinski, 1 Vet.App. 308, 313 (1991) (when there has been
a change in an applicable regulation after a claim has been
filed, but before final resolution, the regulation most
favorable to the claimant must be applied). Under the
regulations in effect prior to August 30, 1996, a 10 percent
evaluation is warranted for malaria which has been recently
active, with one relapse in the past year, or for old cases
of malaria with moderate disability. 38 C.F.R. Part 4,
Diagnostic Code 6304 (1996).
The regulations in effect as of August 30, 1996, provide that
a 100 percent evaluation is warranted for malaria as an
active disease. The diagnosis of malaria depends on the
identification of the malarial parasites in blood smears. If
the veteran served in an endemic area and presents signs and
symptoms compatible with malaria, the diagnosis may be based
on clinical grounds alone. Relapses must be confirmed by the
presence of malarial parasites in blood smears. Thereafter
rate residuals such as liver or spleen damage under the
appropriate system. 38 C.F.R. Part 4, Diagnostic Code 6304
(1998).
In every instance where the schedule does not provide a zero
percent evaluation for a diagnostic code, a zero percent
evaluation shall be assigned when the requirements for a
compensable evaluation are not met. 38 C.F.R. § 4.31 (1998).
Where there is a question as to which of two disability
evaluations shall be applied, the higher evaluation will be
assigned if the disability picture more nearly approximates
the criteria for that rating. Otherwise, the lower rating
will be assigned. 38 C.F.R. § 4.7 (1998).
Private treatment records dated from April 1990 to January
1994 indicated that the veteran was treated for multiple
disorders including ischemic heart disease and
cardiomyopathy. There was no reference to malaria.
In a May 1994 lay statement from the veteran's wife, it was
reported that while she was dating the veteran he became sick
and was told that it was a malaria relapse. She stated that
the veteran's entire life had been "up and down with
illnesses, nightmares, chills and fever". In a May 1994
statement, [redacted], reported that he was a friend of
the veteran. Mr. [redacted] reported that the veteran had
many viruses during military service including malaria. He
stated that the veteran had talked about constant fatigue,
sleep walking and nightmares. In a May 1994 lay statement,
the veteran's brother reported that over the previous three
months the veteran had fluid build-up in his lungs and
swelling in his legs.
In a May 1994 statement, Robert W. Hargraves, M.D., reported
that he had treated the veteran over the previous three years
for heart disease. Dr. Hargraves stated that the veteran
presented with cardiomyopathy and that there was no definite
etiology for such disorder, but that there was a possibility
that such related to an old viral infection.
In his January 1995 substantive appeal, the veteran stated
that he had suffered "relapse after relapse" and that he
blamed malaria and parasites. He reported, however, that a
physician indicated that his current problem, apparently his
cardiovascular disorder, was caused by viruses.
The veteran underwent a VA systemic conditions examination in
October 1996. He reported that in 1951, he was diagnosed
with malaria and was treated at that time. The veteran
stated that after his discharge from service he suffered from
fatigability where his exertional capacity was somewhat
limited. The examiner noted that the veteran's vital signs
were stable, his lungs were generally clear and his
extremities were negative for clubbing, cyanosis or edema.
The impression included cardiac dysfunction with documented
cardiomyopathy, ischemic heart disease with coronary artery
disease and valvular dysfunction. The examiner commented
that given the veteran's history of recurrent viral syndrome
in the service and a history of pneumococcal type pneumonitis
and subsequent documented malaria, it appeared that the
veteran's viral insults may well have produced a myocarditis.
Additionally, the examiner noted that he had a discussion
with another physician and indicated that it was felt that
although it could not be conclusively established whether the
etiology of the veteran's heart failure and dysfunction was
secondary to recurrent viral episodes or sustained bacterial
and subsequent malaria illness, it would certainly be a
possible factor given no other family history or exacerbating
factors which would produce a cardiomyopathy.
The veteran underwent a VA infectious, immune and nutritional
disabilities examination in September 1998. It was noted
that the veteran was diagnosed with malaria and treated with
pharmacological interventions in 1951 for 30 days. The
examiner noted that as a sequela of that, the veteran gave a
history of intermittent fevers since that time, but not to
the extent that he would seek medical care. Additionally, it
was noted that the veteran had not been hospitalized or
presented to an emergency room as a result of recurrent
febrile illness. The veteran reported that he had just
"toughed it out" at home. The examiner reported that the
veteran denied any recurrent fevers or anemia associated
particularly with infectious etiology. The examiner
indicated that there had been no documentation of active
infection, currently, either as a sequela of malaria or other
viral or other syndrome. The examiner commented that given
the severity of the veteran's infection as documented by his
cardiovascular specialist, it is possible that the veteran's
viral sequelae may have well been an underlying
cardiomyopathy that may have been a contributing factor to
his subsequent cardiac dysfunction. The examiner remarked
that it appeared that they would not be able to document
definitively a relationship directly between the veteran's
service-connected malaria infection and his end stage
cardiomyopathy necessitating a cardiac transplant. It could
also not be definitively documented that there was a
relationship between a viral and/or bacterial infection in
the fifties and the veteran's subsequent development of
severe cardiomyopathy. However, the examiner remarked that
the possibility as documented does exist that there could be
a contributing relationship between the two.
The Board has made a careful longitudinal review of the
record. It is observed that the clinical and other probative
evidence of record fails to indicate that the veteran suffers
from symptomatology productive of malaria which had been
recently active, with one relapse in the past year, or from
an old case of malaria with moderate disability. 38 C.F.R.
Part 4, Diagnostic Code 6304 (1998). The most recent
September 1998 VA infectious, immune and nutritional
disabilities examination report, noted that the veteran was
diagnosed with malaria and treated with pharmacological
interventions in 1951 for 30 days. The examiner noted that
as a sequela of that, the veteran gave a history of
intermittent fevers since that time, but not to the extent
that he would seek medical care. Additionally, the veteran
was not hospitalized as a result of recurrent febrile illness
and indicated that he "toughed it out" at home. The
examiner also reported that the veteran denied any recurrent
fevers or anemia associated particularly with infectious
etiology. The examiner specifically indicated that there had
been no documentation of active infection, currently, either
as a sequela of malaria or other viral or other syndrome.
Additionally, the Board notes that the October 1996 VA
systemic conditions examination report noted that the veteran
indicated that following his discharge from service, he
suffered from fatigability where his exertional capacity was
somewhat limited. The impression referred to the veteran's
cardiovascular disorders. Therefore, the Board notes that
the evidence of record clearly fails to indicate that the
veteran suffers from malaria which has recently been active
with one relapse in the past year, or from an old case of
malaria with moderate disability as required for a 10 percent
disability evaluation pursuant to the appropriate schedular
criteria noted above. The Board notes that although the
veteran reported, pursuant to the September 1998 VA
infectious, immune and nutritional disabilities examination
report, that he suffered intermittent fevers since his
diagnosis of malaria in 1951, there is no clinical indication
of treatment for residuals of malaria or for recently active
malaria. The examiner pursuant to the September 1998
infectious, immune and nutritional disabilities examination
report, specifically indicated that there was no
documentation of active infection as a sequela of malaria.
In fact, the only clinical diagnosis of malaria, of record,
was in 1951. The Board observes that both the October 1996
VA systemic conditions examination report and the September
1998 VA infectious, immune and nutritional disabilities
examination report referred to a possible relationship
between the veteran's service-connected malaria and his
subsequent cardiovascular disorders. However, the veteran is
not presently service-connected for a cardiovascular
disorder. The evidence of record simply does not indicate
symptomatology, referable to the veteran's service-connected
malaria, which would be indicative of a compensable
evaluation.
Further, to ensure that the veteran is not prejudiced by the
Board's decision to evaluate him under the regulations in
effect prior to August 30, 1996, the evidence will also be
examined under the new criteria to determine if a compensable
evaluation could be made thereunder. See Bernard v. Brown, 4
Vet.App. 384 (1993). Under the new criteria, a 100 percent
evaluation is warranted for malaria as an active disease.
According to such criteria the diagnosis of malaria depends
on the identification of the malarial parasites in blood
smears. However, if the veteran served in an endemic area
and presents signs and symptoms compatible with malaria, the
diagnosis may be based on clinical grounds alone.
Additionally, relapses must be confirmed by the presence of
malarial parasites in blood smears. Thereafter residuals
such as liver or spleen damage are rated under the
appropriate system. 38 C.F.R. Part 4, Diagnostic Code 6304
(1998). As noted above, the examiner, pursuant to the
September 1998 VA infectious, immune and nutritional
disabilities examination report, specifically indicated that
there was no documentation of active infection as a sequela
of malaria. Further there was no reference to any liver or
spleen damage. The Board observes that the evidence of
record simply does not satisfy the criteria for a 10 percent
evaluation under the new or old regulations. Therefore, in
consideration of the provisions of 38 C.F.R. § 4.31 (1998),
the Board concludes that the noncompensable disability
evaluation sufficiently provides for the veteran's present
level of disability. Accordingly, an increased evaluation
for malaria is denied.
ORDER
A compensable evaluation for malaria is denied.
JEFF MARTIN
Member, Board of Veterans' Appeals
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